Opinion
00-CV-3930 (JBW), 03-MISC-0066 (JBW)
July 14, 2003
MEMORANDUM, JUDGMENT ORDER
The court's June 18, 2003 Notification of Case Reassignment was returned as undeliverable. Petitioner has failed to keep the court apprised of his address. The petition for a writ of habeas corpus is dismissed for failure to prosecute. It is also denied on the merits. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was arrested and put on trial for narcotics charges after allegedly selling two vials of cocaine to a woman accompanying an undercover police officer. The undercover officer testified at trial that he was assigned to the area as part of a "buy and bust" team. He saw an individual and asked her where they could purchase narcotics. She took him to a car where a man sold him two packages of marijuana, which he paid for with marked bills. The undercover officer then asked the man if he had any crack cocaine. The marijuana seller said he did not, but directed the officer to petitioner, on the corner about a block away.
The officer and the woman who accompanied him approached petitioner and asked if he had two five-dollar bags of cocaine. At that point, the undercover officer noticed that other members of his team were approaching the marijuana seller to make an arrest. He then "warned" petitioner that police were nearby, and the three of them moved away from the area. Petitioner then asked the woman what she wanted to buy; she replied that she wanted two bags of cocaine and handed him some money. Petitioner went to pick up two vials of crack cocaine and gave them to her. The undercover officer radioed to his team and described what had happened. The team moved in to arrest petitioner.
Petitioner did not testify or call any witnesses on his behalf.
After deliberating for some time, the jury announced to the court that it was deadlocked. Read an Allen charge, they continued to deliberate and eventually found petitioner guilty of the sole count, third degree criminal sale of a controlled substance.
Petitioner was sentenced to 5 to 10 years in prison. His conviction and sentence were affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In the instant application for a writ of habeas corpus, petitioner claims (1) that he was denied a fair trial and due process of the law by the court's decision allowing into evidence testimony about an uncharged crime committed by petitioner should he choose to testify; and (2) that misconduct by the prosecutor deprived him of a fair trial and due process of the law.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhiman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[Flederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
If a petitioner specifies only certain issues that he deems worthy of review in a letter seeking leave to appeal a conviction to the New York Court of Appeals, he will be deemed to have waived any remaining claims in the original appellate brief. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "uses language such as" the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). When a state court "says that a claim is "not preserved for appellate review' and then ruled "in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
V. Certificate of Appealability
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
VI. Analysis of Claims
Petitioner claims that he was denied a fair trial and due process of the law by the court's decision allowing into evidence testimony about a similar uncharged crime committed by petitioner should he choose to testify. This claim is exhausted and was not procedurally barred in the state courts. Nonetheless, this court may not grant habeas relief on this ground. Because petitioner did not testify at trial, the claim is not cognizable in a habeas corpus proceeding. See Luce v. United States, 469 U.S. 38, 43 (1984) ("to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify"); Grace v. Artuz, No. OO-CV-1441, 2003 U.S. Dist. LEXIS 6969, at *26 (E.D.N.Y. Apr. 22, 2003) ("petitioner's claim as to the impropriety of the Sandoval ruling does not raise a constitutional issue cognizable on habeas review ").
Petitioner also claims that misconduct by the prosecutor deprived him of a fair trial and due process of the law. Although he raised this claim on direct appeal, in his letter seeking leave to appeal to the New York Court of Appeals, petitioner specified only one ground on which he sought review the Sandoval issue. This claim is therefore unexhausted and would be procedurally barred if petitioner sought to raise it in the state court. In addition, the claim was deemed procedurally defaulted by the Appellate Division as "unpreserved for appellate review when raised on direct appeal. See People v. McKay, 686 N.Y.S.2d 711, 712 (App.Div. 1999). Thus, this court is doubly barred from reviewing the claim because it was forfeited on independent and adequate procedural grounds.
At any rate, the claim is without merit. Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Nonetheless, "when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair." Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643). Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S. at 643. In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
Petitioner complains that the prosecutor committed misconduct (1) by failing to disclose to the trial judge "the precise nature of [the marijuana seller's] comments about where to buy cocaine"; (2) by "severely distort[ing] the length of time during which the undercover officer observed the seller"; and (3) by vouching for the police and shifting the burden of proof onto the defense.
With respect to the first claim of misconduct, petitioner states that the prosecutor was given leave by the trial judge to elicit testimony that the marijuana seller "pointed to where the defendant was standing" when asked if he knew where to buy cocaine, Trial Tr. at 13, but that at trial the prosecutor elicited much more incriminating and detailed testimony i.e., that the marijuana seller "pointed over to the corner of 148th Street and 111th Avenue and said, go right over there, you can get some right there. Just ask the guy right there on the corner," id. at 338. The testimony elicited at trial was within the scope of the trial judge's pretrial evidentiary ruling. The prosecutor committed no misconduct. Arguably, this pointing constituted a form of inadmissible hearsay — viz., "I know that man is a drug seller" — but it was harmless since in fact the independent evidence overwhelmingly showed the petitioner was a drug seller.
With respect to the second claim of misconduct, petitioner states that he was severely harmed by the prosecutor's statement during summation that the undercover officer observed petitioner for twenty minutes during the drug buy, when if fact he testified that he observed petitioner for only several minutes. There was no misconduct. In fact, the prosecutor stated the following:
Twenty minutes, ladies and gentlemen, twenty minutes. That is how long the undercover officer observed this defendant on November 2d 1996. Twenty minutes. And of those twenty minutes, six or seven minutes were devoted purely to watching the defendant, studying the defendant, looking at his face, looking at his clothes. And another six or seven of those twenty minutes were spent engaged in conversation with the defendant. The undercover officer spoke to the defendant for a good portion of those twenty minutes and the other portion of those twenty minutes were so the undercover could identify him after the sale.
Trial Tr. at 141. The prosecutor's remarks were a fair comment on the evidence. Whether the prosecutor was precisely accurate in her discussion of the number of minutes during which petitioner was observed is, under the instant circumstances, mere quibbling. The jury was instructed that it was to decide the facts from the evidence put before it and that the prosecutor's summation was not evidence. Even if the prosecutor should have been or could have been more accurate in her statement, any error was harmless.
With respect to petitioner's third claim of misconduct, petitioner argues that the prosecutor vouched for the undercover officer by stating that he had no motive to lie, and that the prosecutor shifted the burden of proof onto petitioner by stating that petitioner had offered no proof that any officer had lied. The prosecutor did state that the officer had no motive to lie and that there was no proof that any officer had lied, but the prosecutor did so in response to defense counsel's summation argument attacking the officer's credibility. See Trial Tr. at 430-32. Such comments by a prosecutor are not vouching and are proper in response to an attack on the credibility of an officer's testimony. See People v. Bolden, 627 N.Y.S.2d 660, 660 (App.Div. 1990). Habeas relief is not warranted on the ground of prosecutorial misconduct.
VII. Conclusion
The petition for a writ of habeas corpus is dismissed for failure to prosecute and denied on the merits.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.